This is not victors' justice in the
former Yugoslavia -
in fact, it is no justice at all'

By John Laughland

The Times, London, June 18, 1999

Emotion may be a spur to justice, but it is rarely its
guarantor. The allegations of war crimes eagerly funnelled
out of Kosovo by the thousands of journalists in the
province have provoked a demand for retribution. That cry
for justice is natural. But the International Criminal
Tribunal for the Former Yugoslavia, the body charged with
pursuing those accused of war crimes in Kosovo, is a rogue
court with rigged rules.

The tribunal was established to override the key
principle of the international order - the belief written
into the UN charter that states were sovereign within their
own borders. State sovereignty, it was claimed, merely
provided a cover for dictators to wield unfettered power and
therefore international authority must override it. It is a
seductive argument but one which may simply allow the
"international community" to wield unfettered power
instead.

The International Criminal Tribunal shows little sign of
caring that Nato has itself broken nearly every rule of war,
or that the peace deal concluded with Belgrade is null and
void in international law, since Yugoslavia's signature was
obtained by force. Instead, it displays considerable
contempt for the very thing which distinguishes the rule of
law from retributive justice, namely due process.

One of the oldest principles of law is that a defendant
may not be tried twice for the same crime. Dating from
15th-century England and expressed in the 5th Amendment to
the US Constitution, this ancient rule is calmly brushed
aside by Article 25 of the tribunal's statute, which gives
the Prosecutor the right to appeal against an acquittal and
obtain a conviction instead. Three such appeals have already
been launched in cases the tribunal is now trying.

Another deeply-rooted principle is that no man may be
judge in his own cause. This does not apply to the tribunal.
During one trial it was alleged that the tribunal itself was
illegal because the United Nations Charter does not give the
Security Council authority to create a body with
supranational powers to prosecute individuals.

Although it is a key requirement for due process that a
defendant be tried by a body "established by law", the
Security Council is not a l aw-making body. Faced with the
allegation that it had no legitimacy, the tribunal did not
refer the matter to another body, such as the International
Court of Justice, but instead decided to deal with the
charge itself. Not surprisingly, it found in its own
favour.

Other anomalies are legion. The tribunal does not accord
the right to bail or to a speedy trial. It does not have any
definitions of the burden of proof required for a
conviction, such as "beyond reasonable doubt". It does not
have juries. There is no independent appeal body. Rules
against hearsay, deeply entrenched in Common Law, are not
observed and the Prosecutor's office has even suggested not
calling witnesses to give evidence but only the tribunal's
own "war crimes investigators". This flouts the rule that a
defendant must be able to confront his accusers and prepare
a cross-examination of them.

The tribunal gives itself powers as it goes along. Louise
Arbour, the recently departed Chief Prosecutor, has said:
"The law, to me, should be creative and used to make things
tight," and the tribunal dips into a potpourri of different
legal systems from around the world. In one case, the
tribunal defended itself against charges that it had
illegally seized documents from the Bosnian Government by
saying that its procedures were compatible with the law in
Paraguay. General Stroessner evidently has a place in the
tribunal's judicial pantheon alongside Sir Edward Coke and
William Blackstone.

As if this were not enough, the tribunal is not funded by
disinterested parties, but by those who waged or supported
the attacks on Yugoslavia. These include the leading Nato
governments (especially the United States) and various
non-governmental organisations like George Soros's Open
Society Institute, whose head of office in Kosovo is a
militant supporter of the Kosovo Liberation Army.

Might, it seems, is always right. Just ask the Nato
spokesman Jamie Shea. On May 17, he was asked whether Nato
leaders could ever be indicted by the tribunal. "As you
know," he replied, "without Nato countries there would be no
International Court of Justice, nor would there be any
International Criminal Tribunal for the former Yugoslavia
because Nato countries are in the forefront of those who
have established these two tribunals, who fund these
tribunals and who support on a daily basis their
activities." This is not victors' justice - it is no justice
at all.